When a U.S. litigator sues a Chinese defendant, they very rightly hop on Google seeking information on how to serve process in China. Luckily for me, they quickly find my post on the subject, and they get up to speed.
Why is it lucky for me? Because although many litigators follow my step-by-step guide to Hague requests and do it themselves, others conclude that a DIY approach is not the best way to go, and they bring me on board to handle the Hague procedure for them. The engagement usually comes after they’ve filed the suit, which tells me that they’re committed to keeping the litigation stateside– and that they’ve identified the defendants’ U.S. assets. As such, I have no real hesitation to jump right in and assist. But there are pre-filing situations where I question the strategic rationale for litigating here in the land of E Pluribus Unum.
That’s a fun conversation to have with a plaintiff’s attorney who makes his/her living bringing lawsuits. “Hey, might your client be better off suing the bad guys in China rather than in the United States?”
Yesterday, my friend and colleague, Dan Harris, posted again on (the ever-entertaining, often controversial, and always compelling) China Law Blog that “(s)ince Mainland Chinese courts do not enforce U.S. judgments, it is usually (but not always) a waste of time and money to bring a lawsuit in a U.S. court against a Chinese company that does not have assets in either the United States or in a country that enforces U.S. judgments.” This conclusion is from a guy who makes a good chunk of his living bringing lawsuits in U.S. courts against Chinese companies. How to Sue a Chinese Company: The 101 is a pretty powerful missive. Essentially, Dan points out what is obvious to those of us in the transnational field, but not so apparent to the thousands of litigators who don’t often pursue foreign defendants– those foreign defendants could be turnips.* And then he delves into the intricacies of serving Chinese defendants, which is my bailiwick (see How to Serve Process in China, which carries Dan’s message of caution, and How to Serve Process in China… important updates for a primer).
The bottom line is that serving Chinese defendants is far more complicated than some folks would have you believe. Oh, it’s just a form to fill out, they say.
Um, okay, good luck with that, I say in return.
Litigating with Chinese defendants– or offshore defendants in general– isn’t for the faint of heart, and it must not be undertaken unadvisedly. Undertaking it advisedly might just mean doing it in an overseas court.
* As in “can’t get blood out of a… .” That is, a U.S. litigator (or litigant) could bear thousands of dollars in costs to litigate all the way up to a decent judgment, only to find that it’s not a collectible judgment. It ain’t over ’til the client gets a check.